The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1887-02-18


dictments is shown by the fact that in
each the charge laid is that theClefend-
ant did on that day named and ''there-
after and continuously, for the time
specified, "live and cohabit with
more than one woman, to-wit, with the
seven women named, and ''during all
the. period aforesaid did unlawfully
Claim, 1--we and cOhabit with all of said
women as his wiveS.n Thus, in each
indictment, the offense is laid as a con-
tinuiDgy one, and single one, for all
the time covered by the indictment:
and, taking the three indictments to-
gether, there is charged a continuing
offence for the entire thine covered by
all three of the indictments. There
was but q single offence committed
prior to, the time the indictments were
found. This appears on the face of the
judgment. It refers to the Indictments
as found ''for the crime of unlawful
cohabitation committed" "during the
time" stated, divided into three
periods, according to each indictment.
For so much of the offence as covered
each of these periods the defendant is,
according to the judgment, to be i'm
priSoned for six months and to. pay
fine of $500. The division of the two
years and eleven months is wholly ar
bitrary. On the same principle there
might have been an Indictment cover
ing each of the thirty-fYe months, with
Imprisonment for seventeen years and
a kalf and fines amounting to $40, 800,
or ever an indictment Towering ievery
week, with imprisonment for seventy
four yours and fines amounting to S44,
400; and so on, dd ilfnitun1, for small
er periods of time 1t is to prevent
such an application of penal laws, that
the rule has obtained that a continuing
offence of the character of the one In
this case can be committed but once,
for the purpose of indictment or prose-
cation, prior to the time the prosecu-
ton is instituted. Here each indict-
ment charged unlawful cohabitation
with the same seven women, all the
indictments were found at the same
time, by the same grand jury, and on
the testimony OF the same witnesses,
covering continuous period of thirty
five months; and it was the mere will
of the grand jury which divided the
time among three indictments, and
stopped short of dividing it among
thirty five, or one hundred and fifty
two, or even more. 1t was quite in
consOnance with this action, that the
prosecuting officer itried the indict-
ments in the inverse order of the time
to which each related, that. for 1885
| first, that for 1884 next, and that for
1888 last. Hence the defendant could
not, on any trial, plead or show that
he had before been tried on an indict-
ment in respect to period of time
antedating that laid in the indictment
on trial. Then, after the verdicts,
there was not a separate judgment in
each case; but only one judgment in
form was rendered for all the cases.
| The judgment says, on its face, that the
proper officer Of the penitentiary is. to
lmpriSon the defendant therein "for
the periods as IN this judgment ordered
and specified" that is, for three sue
| cesSive periods of six months each,
the first period to apply to the indict-
ment thirdly tried; the second period
to apply to the indictment first tried,
and to begin when the sentence ana
judgment on the Indictment thirdly
tried should expire; and the third
period to apply to the indictment
secondly tried, and to begin when the
sentence and judgment on the lndict-
ment secondly tried shall expire.
| No case is cited where what mas been
| done in the present case has been held
! to be lawful. But the uniform current
of authority is to the contrary, both IN
England and IN tie United States.
A leading case on the subject in Eng
land is CreppS Z. burden, Coup, 64O.)
Ia that case the statute, 90 Car. 2, C. !,
| provided "that no tradesman or other
person shall do or exercise any world
| iy labor, business, or work of their
ordinary calling on the Lords day,
works of necessity and charity
only excepted" A penalty OF five
shillingS was affixed to each
offence, and it was made cognizable
by justice of the peace. CreppS, i
baker, was convicted before burden,
justice, by four separate convictions,
''of selling small hot loaves of bread
the same not being any work OF charity,
on the same day, beng Sunday" in
violation of that statute. burden
| issued four warrants, one on each con-
| viction, to officers, who, under them,
levied four penalties, of five ShillingS
each, On the goods of CreppS. The
latter sued burden and the others, in
trrSpaSS, in the Kings Bench, in 17I1,
and had verdict before Lord Mans
field, for three sums of five shilliHgS
each, subject to the opinion of the
Court. The first question raised was
Nu0lueT, III IGe dCLlOu VI lISSpdSSI duu
before the convictions were quashed,
their legality could be objected to;
and, next, whether the levy under the
last three warrants could be justified.
1t was commended tor the plaintiff that
the last three convictions were in OK
cess CT the jurisdiction of the justice,
because the offence created by the
statute was the exercising of calling
on the Lords day, and, it the plaintiff
had continued baking from morning
till night, it would still be but one Of
fence; that the four convictions were
for one and the same offence: and that
an action would lie against the justice
and the officers. On the other side, it
was urged that as the justice had gen.
eral Jurisdiction of the offence in ques-
ton, the convictions must be qusshed,
or reversed on appeal, before they
could be questioned. At subsequent
day, the unanimous; opinion of the
Court was delivered by Lord Mans
field. He first considered the question
whether the legality of the convictions
could be objected to before they were
ouashed. AS to this he said: 'Here
are three convictions of baker, for
exercising his trade on one and the
same day, he having been before con-
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